How Missouri Got Ahold Of Its Backup Execution Drug

When Missouri's execution drug supplier backed out after facing a lawsuit, the state found another pharmacy willing to sell it pentobarbital. But if that proved impossible, Missouri also had another option: It could use its controversial backup drug, midazolam.

Midazolam is a drug used to treat insomnia. It's the drug Ohio used in a recent execution that took more than 20 minutes, with witnesses reporting that the inmate gasped and snorted during that time.

In a sworn deposition in January, David Dormire, director of adult institutions, said Missouri didn't have midazolam. Later in the questioning, though, he changed his mind.

"I was reminded we had purchased that as a backup," Dormire said.

If Missouri were to use its backup drug, the state would have to alter its protocol, which currently allows only for pentobarbital.

From the deposition of David Dormire.

Execution drugs aren't easy for states to get. Virtually no drug manufacturer wants its products used for lethal injections. Many of them actually make the companies that sell their drugs sign an agreement saying they won't sell to departments of corrections.

That's why states like Missouri have resorted to using compounding pharmacies -- which aren't regulated by the Food and Drug Administration -- to mix the drugs, even though their drugs have a relatively high failure rate.

Despite manufacturers' efforts to keep their drugs out of the hands of death penalty states, some states have managed to get them.

According to records we obtained, Missouri has 240 ml of midazolam, most of which expires in August of this year. It's unclear how many executions this supply could be used for.

What is clear, however, is that the state obtained the drug from two separate sources.

In June 2012, Morris & Dickson in Louisiana sold Missouri a supply of midazolam. The company also sold propofol to the Department of Corrections when the state was planning on using that drug for executions. Morris & Dickson said selling propofol was an error and begged the state to return it. After 11 months, the Department of Corrections relented, and said it would send the propofol back to the company.

A November 2012 email from Morris and Dickson to the Missouri Department of Corrections, pertaining to propofol.

Morris & Dickson did not respond when we asked if the company also requested that the midazolam supply be returned.

Missouri's other seller is closer to home. In August, the state bought a supply of midazolam from Healthcare Equipment & Supply Co. in Perryville, Mo.

Records show the state's contact was Patrick Naeger, the company's vice president. Naeger was also a Republican state representative from 1994 to 2002.

A picture of Patrick Naeger from his time in the Missouri House.

Credit via house.mo.gov

"I can get in 10 ml vials," Naeger wrote in one email to the Department of Corrections. "Looks like my wholesaler has 4 packs of 10 in stock. $211.95 for 10 vial pack."

Naeger did not respond to a request for comment in this story.

From the 40 pages of records we obtained, it's unclear which company manufactured the drug. Hospira, a U.S. company that makes midazolam, is one of the manufacturers that makes its sellers agree not to sell to departments of corrections.

But that isn't foolproof, as the company admitted when announcing its plan.

"Due to the complex supply chain and the gray market in the United States, despite our efforts, [we] cannot guarantee that a U.S. prison could not secure restricted products through other channels not under [our] control."